Cheek v. Iron County

2018 UT App 116THE UTAH COURT OF APPEALS
HAYLEE CHEEK,
Appellant,
v.
IRON COUNTY, IRON COUNTY ATTORNEY, AND CEDAR CITY,
Appellees.
Opinion
No. 20160787-CA
Filed June 14, 2018
Fifth District Court, Cedar City Department
The Honorable Marvin D. Bagley
No. 150500081
Tyler B. Ayres and Daniel Baczynski, Attorneys
for Appellant
Jesse C. Trentadue and Noah M. Hoagland,
Attorneys for Appellees Iron County and Iron
County Attorney
Robert C. Keller and Timothy J. Bywater, Attorneys
for Appellee Cedar City
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 After her civil rights claims were dismissed in federal
court, Haylee Cheek filed a complaint in state district court
alleging that she had been treated with unnecessary rigor, in
contravention of the Utah Constitution. As she had in her federal
suit, she named as defendants Iron County; the Iron County
Attorney, Scott Garrett; and Cedar City (collectively, the
Defendants). Upon a motion from each of the Defendants, the
state district court dismissed Cheek’s claims without reaching
Cheek v. Iron County
any conclusions regarding their substantive merit. Cheek
appeals. We affirm in part and reverse in part.
BACKGROUND 1
The Federal Suit
¶2 On May 28, 2010, Cheek filed a complaint in Utah’s
federal district court alleging that, during her arrest and
subsequent detention, the Defendants had violated her civil
rights. 2 The complaint contained seven causes of action arising
under section 1983 of the United States Code and three arising
under the “unnecessary rigor” provision of the Utah
Constitution. 3 In support of her state-law claims, Cheek alleged
that the named defendants had violated her constitutional rights
by setting excessive bail, by compelling her to provide blood and
urine samples pursuant to an illegal warrant, and by failing to
protect her from a sexual assault during her incarceration.
1. When reviewing a motion to dismiss, “we review the facts
only as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Gregory v.
Shurtleff, 2013 UT 18, ¶ 8, 299 P.3d 1098 (citation and internal
quotation marks omitted).
2. Following her arrest, Cheek was charged with several serious
crimes, including aggravated robbery and aggravated
kidnapping, for which she was ultimately convicted. We
affirmed those convictions. See State v. Cheek, 2015 UT App 243,
361 P.3d 679.
3. See Utah Const. art. I, § 9 (“Persons arrested or imprisoned
shall not be treated with unnecessary rigor.”).
20160787-CA 2 2018 UT App 116Cheek v. Iron County
¶3 In the initial complaint, Cheek listed Garrett as a
defendant in both his official and individual capacities. But
Cheek later amended the complaint to include Garrett only in his
official capacity. Garrett then filed a motion to dismiss. The
federal court granted the motion on November 18, 2014,
reasoning that the complaint stated that the individual
defendants were sued only in their official capacity. The court
explained:
An official-capacity suit is another way of pleading
an action against an entity of which an officer is an
agent. What’s more, a person sued in his official
capacity has no stake, as an individual, in the
outcome of [the] litigation. Accordingly, the claims
against all individual defendants . . . are dismissed.
The court specified in its order that Garrett’s dismissal was
“with prejudice.”
¶4 Following Garrett’s dismissal, Cedar City and Iron
County moved, respectively, for summary judgment and
judgment on the pleadings. Rather than opposing these motions,
Cheek conceded that her “claims under federal law may be
procedurally, legally and/or factually insufficient” and agreed
that they should be dismissed with prejudice. In light of this
concession, the federal court dismissed Cheek’s suit, noting that
she had the option to refile her state-law claims in a state court of
general jurisdiction.
The State Suit
¶5 In May 2015, Cheek commenced this action in Utah’s Fifth
District Court against the Defendants and several Cedar City
and Iron County departments and employees. In her complaint,
she reasserted two of her three unnecessary rigor claims, this
time narrowing the scope of her suit to the allegations that the
Defendants had illegally compelled her to provide a urine
20160787-CA 3 2018 UT App 116Cheek v. Iron County
sample and that they had failed to prevent her sexual assault.
After filing her complaint, Cheek attempted to effect service on
the Defendants, with, as it turns out, only mixed success.
¶6 In October 2015, the Defendants filed motions to dismiss.
Cedar City argued that Cheek’s claims against it should be
dismissed on jurisdictional grounds because she had failed to file
a notice of claim prior to commencing her action, in accordance
with the Governmental Immunity Act of Utah. Garrett, for his
part, argued that Cheek’s claims against him were barred by the
doctrine of res judicata. Finally, Iron County argued that the
state district court had not effectively exerted jurisdiction over
the county because Cheek did not serve the summons and
complaint on the County Clerk, as required by rule 4 of the Utah
Rules of Civil Procedure. Instead, she had served the County
Recorder. 4
¶7 The state district court granted Cedar City’s motion in
November 2015, and it granted Garrett’s and Iron County’s
motions several months later in a bifurcated order. In its first
“partial” order, entered in July 2016, the court dismissed all Iron
County departments, as they are not separate legal entities and
cannot be sued. The court also dismissed all employees named
in the suit, with the exception of Garrett, explaining that Cheek
had voluntarily relinquished her claims against them during the
hearing on Iron County’s motion. The court then entered its
second order in August 2016, wherein it dismissed Cheek’s
claims against Garrett with prejudice and her claims against Iron
County without prejudice. On appeal, Cheek concedes that all of
4. Cheek suggests that she was informed by an unnamed Iron
County employee that service upon the County Recorder would
be effective. She does not, however, allege that the County
Recorder accepted the summons and complaint with the willful
or fraudulent purpose of evading effective service on the
County.
20160787-CA 4 2018 UT App 116Cheek v. Iron County
her claims were time-barred by the time the court ruled on Iron
County’s motion, meaning that, if it stands, the court’s second
order effectively put an end to her suit. Cheek now appeals the
district court’s orders.
ISSUES AND STANDARDS OF REVIEW
¶8 Cheek presents three issues for our review. In her opening
brief, Cheek ascribes error to the state district court’s conclusion
that it lacked jurisdiction over the subject matter of her suit
against Cedar City. The court’s decision should be reversed, she
argues, because it rested on the incorrect premise that her
unnecessary rigor claims were subject to the notice-of-claim
provisions of Utah’s Governmental Immunity Act. Rather than
contesting this point, Cedar City concedes that a plaintiff’s right
to assert an unnecessary rigor claim is not subject to the
Governmental Immunity Act and argues that we should affirm
on mootness grounds instead.
¶9 Accordingly, the first issue presented for our review
becomes this: To successfully assert an unnecessary rigor claim
against a governmental employer, must a plaintiff name, as a
party to the action, the individual employee whose conduct gave
rise to the claim? If so, Cedar City argues, then the district
court’s errant jurisdictional determination is mooted by the
district court’s July 2016 order, in which it dismissed all of
Cheek’s claims against Cedar City and Iron County employees
with prejudice. Whether a plaintiff has successfully stated a
prima facie claim for relief is a question of law, which we review
for correctness. Handy v. Union Pac. R.R., 841 P.2d 1210, 1215
(Utah Ct. App. 1992).
¶10 The second issue for our review is whether the state
district court erred in concluding that Cheek’s claims against
Garrett were barred by the doctrine of res judicata. “Whether a
claim is barred by res judicata is a question of law that we
20160787-CA 5 2018 UT App 116Cheek v. Iron County
review for correctness.” Gillmor v. Family Link, LLC, 2012 UT 38,
¶ 9, 284 P.3d 622.
¶11 The third issue is whether the court erroneously
concluded that it did not have personal jurisdiction over Iron
County given Cheek’s failure to serve the County Clerk.
“Whether the district court had personal jurisdiction is a
question of law, which we review for correctness.” Bel Courtyard
Invs. v. Wolfe, 2013 UT App 217, ¶ 9, 310 P.3d 747. And “[t]o the
extent this issue requires us to interpret rules of civil procedure,
it presents a question of law,” which we also “review for
correctness.” Harris v. IES Assocs., Inc., 2003 UT App 112, ¶ 25, 69
P.3d 297 (citation and internal quotation marks omitted).
ANALYSIS
I. Cedar City
¶12 We begin by addressing Cedar City’s mootness argument.
As we briefly explained above, Cedar City concedes that the
district court erred in determining that it did not have
jurisdiction over Cheek’s unnecessary rigor claims against it.
Nevertheless, the City contends that the jurisdictional issue was
mooted by the court’s July 2016 order. In that order, which
Cheek has not challenged on appeal, the court dismissed with
prejudice Cheek’s claims against every Cedar City employee
named as a defendant in the complaint. Cedar City contends that
this is fatal to Cheek’s suit against it because an unnecessary
rigor claimant proceeding against a governmental employer
must, in order to survive a motion to dismiss, name as a
defendant the particular employee who subjected her to
unnecessary rigor. Because we see no basis for this purported
requirement in the law, we reject Cedar City’s mootness
argument and reverse the district court’s decision dismissing the
City from the action.
20160787-CA 6 2018 UT App 116Cheek v. Iron County
¶13 As an initial matter, we note that we will decline to reach
the issue of whether the district court had jurisdiction over the
subject matter of a suit if we determine that the issue has become
moot on appeal. In general, “subject matter jurisdiction goes to
the heart of a court’s authority to hear a case,” and as such, “it is
not subject to waiver and may be raised at any time.” In re
adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702. But “[w]e
refrain from adjudicating issues when the underlying case is
moot,” Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989),
including issues of jurisdiction, Towner v. Ridgway, 2012 UT App
35, ¶ 5, 272 P.3d 765. Thus, we have echoed our Supreme Court
in stating that “where any determination an appellate court
might make regarding a lower court’s jurisdiction will not affect
the rights of the parties in relation to any issues other than
those . . . already declared moot, the issue of jurisdiction is also
moot.” Id. (omission in original) (citation and internal quotation
marks omitted).
¶14 Cedar City has not persuaded us that Cheek is required to
name a City employee as a party in order to proceed with her
suit. The City maintains that our Supreme Court’s decision in
Bott v. Deland, 922 P.2d 732 (Utah 1996), abrogated on other grounds
by Spackman v. Board of Educ., 2000 UT 87, 16 P.3d 533, stands for
the proposition that a plaintiff cannot maintain an unnecessary
rigor action against a governmental employer unless she names
as a defendant the governmental employee who she believes is
responsible for her injuries. In support, the City relies on the
following language from the Court’s decision: “[A] prisoner may
not recover damages” against the government under the
unnecessary rigor provision “unless he shows that his injury was
caused by a prison employee who acted with deliberate
indifference or inflicted unnecessary abuse upon him.” Id. at 740.
But we do not read this language to mean that an unnecessary
rigor claimant cannot proceed against a governmental entity
without naming one of its employees as a defendant in her
lawsuit. Rather, it simply means that she may not hold a
20160787-CA 7 2018 UT App 116Cheek v. Iron County
governmental entity liable for the torts of an individual without
proving that the entity had the right to control that individual’s
conduct at the time of the tort. This requirement does not
necessitate naming the individual tortfeasor as a party to the
suit—only that the responsible employee or employees be
identified in due course. Indeed, in her complaint Cheek
describes actions that would necessarily be attributable to
individual city employees.
¶15 Our interpretation of the Supreme Court’s language in
Bott accords with ordinary rules of agency law, see Mounteer v.
Utah Power & Light Co., 823 P.2d 1055, 1058 (Utah 1991) (holding
that “[c]ommon law rules of agency and respondeat superior”
govern an employer’s liability for the alleged defamatory
statements of an employee who was not named as a defendant),
and Cedar City gives us no compelling reason to believe that the
Court sought to undercut this time-honored principle with its
decision in Bott. Accordingly, we conclude that Cheek’s claims
against Cedar City are not moot. Therefore, given Cedar City’s
concession that the court’s jurisdictional decision was erroneous,
we reverse it and remand for such further proceedings as may
now be appropriate.
II. Garrett
¶16 Cheek maintains that the state district court erred in
dismissing her unnecessary rigor claims against Garrett on res
judicata grounds. 5 “The doctrine of res judicata embraces two
5. “Federal law controls the claim-preclusive effect of prior
federal judgments.” Haik v. Salt Lake City Corp., 2017 UT 14, ¶ 8,
393 P.3d 285. But depending on the type of jurisdiction that the
federal court is exercising, federal law may require a subsequent
court to apply state preclusion law. See id. For example, where a
federal court’s jurisdiction is based on diversity of citizenship
and the federal court resolves questions of state law, the
(continued…)
20160787-CA 8 2018 UT App 116Cheek v. Iron County
distinct branches: claim preclusion and issue preclusion.” Mack
v. Utah State Dep’t of Commerce, 2009 UT 47, ¶ 29, 221 P.3d 194(citation and internal quotation marks omitted). The district
court’s decision rested on the claim preclusion branch.
Whether a claim is precluded from relitigation
depends on a three-part test. First, both cases must
involve the same parties or their privies. Second,
the claim that is alleged to be barred must have
been presented in the first suit or be one that could
and should have been raised in the first action.
Third, the first suit must have resulted in
a final judgment on the merits.
Id. (citation and internal quotation marks omitted).
¶17 Cheek does not challenge the state district court’s
determination that the first two prongs of the claim-preclusion
test were satisfied as to Garrett. Rather, she challenges only its
(…continued)
subsequent court must apply the preclusion rules of the state
whose law was applied by the federal court. See id. But where, as
here, the federal court exercises supplemental jurisdiction, it is
unclear what law a subsequent court should apply. Although
this appears to be an open question, “it is of no practical
consequence” here, as our claim preclusion laws are “virtually
identical” to the federal rules. Id. ¶ 9 (citation and internal
quotation marks omitted). And because both parties and the
state district court “based their arguments on Utah [preclusion]
law”; because our analysis under Utah law “is virtually identical
to that under federal common law”; and because “our ultimate
conclusion would be the same regardless of whether we applied
federal or state law,” we elect to apply Utah law to our analysis
here. See Oman v. Davis School Dist., 2008 UT 70, ¶ 28 n.5, 194
P.3d 956.
20160787-CA 9 2018 UT App 116Cheek v. Iron County
determination that the federal district court’s decision
dismissing Garrett from the first action constituted a final
judgment “on the merits.” 6 We conclude that Cheek has failed to
carry her burden of persuasion on this issue.
¶18 Our Supreme Court has explained that the phrase “‘[o]n
the merits’ is a term of art” referring to a judgment “rendered
only after a court has evaluated the relevant evidence and the
parties’ substantive arguments.” Miller v. USAA Cas. Ins. Co.,
2002 UT 6, ¶ 42 n.6, 44 P.3d 663. Further, “[i]n the context of res
judicata, ‘merits’ has been interpreted to mean real or substantial
grounds of action or defense as distinguished from matters of
practice, procedure, jurisdiction or form.” Utah State Dep’t of
Social Services v. Ruscetta, 742 P.2d 114, 116 (Utah Ct. App. 1987).
Pointing to these principles, Cheek maintains that the federal
district court’s order dismissing Garrett from the federal action
6. Cheek also contends that the federal district court’s order
dismissing Garrett from the federal suit was not “final” for res
judicata purposes because the other Defendants had yet to be
dismissed from the action when the order was entered. This
argument is unpersuasive. “In deciding whether the [district]
court’s order . . . constitutes a final judgment and as such
invokes the doctrine of res judicata we are guided by Rule 54(b)
of the Utah Rules of Civil Procedure[.]” Bernard v. Attebury, 629
P.2d 892, 895 (Utah 1981). That rule does indeed provide that
“any order . . . that adjudicates . . . the rights and liabilities of
fewer than all the parties does not end the action as to any of
the . . . parties.” Utah R. Civ. P. 54(b). However, it further
provides that such nonfinal orders “may be changed at any time
before the entry of judgment adjudicating all . . . the rights and
liabilities of all the parties.” Id. (emphasis added). Accordingly,
as soon as the federal district court entered its order adjudicating
the last of Cheek’s claims, its order dismissing Garrett became
final.
20160787-CA 10 2018 UT App 116Cheek v. Iron County
could not have been a decision on the merits because the court
dismissed him from the action without ever directly addressing
the substantive law of unnecessary rigor.
¶19 Despite the logic of her position, we disagree. In the
courts of this state and the federal system alike, even though it
does not involve the usual hallmarks of a resolution on the
merits, a successful motion to dismiss for failure to state a claim
results in a final judgment on the merits and “‘is accorded res
judicata effect.’” Mack, 2009 UT 47, ¶ 29 (quoting FDIC v. Paul,
735 F. Supp. 375, 380 (D. Utah 1990)). Cheek does not address
Mack except to say that Garrett was not dismissed on a motion
for failure to state a claim and that “not all rulings on a motion to
dismiss are on the merits.” But both the state district court and
Iron County treat Garrett’s federal court motion to dismiss as
one for failure to state a claim, and Cheek has not included the
motion in the record on appeal 7 or otherwise shown that Garrett
moved under a different rule. Accordingly, Cheek has failed to
persuade us that Mack does not apply and that the state district
court erred in concluding her state court action against Garrett
was barred by reason of the preclusive effect of the federal
court’s dismissal of her federal complaint for failure to state an
unnecessary rigor claim against Garrett.
III. Iron County
¶20 Cheek also maintains that the state district court erred in
determining that it did not have personal jurisdiction over Iron
County as a result of her defective service of process. While
7. The appellant has the duty to provide the appellate court with
all “materials in the record that are the subject of the dispute and
that are of central importance to the determination of the issues
presented for review.” Utah R. App. P. 24(a)(12)(C); see also id.R. 11(c) (delineating the appellant’s duty to ensure that the
appellate court has all necessary materials for review).
20160787-CA 11 2018 UT App 116Cheek v. Iron County
conceding that her service upon the County Recorder did not
satisfy rule 4(d) of the Utah Rules of Civil Procedure, see Utah R.
Civ. P. 4(d)(1)(G) (“Upon a county, [personal service must be
made] by delivering a copy of the summons and complaint . . . to
the county clerk[.]”) (emphasis added), she maintains that the
court exerted jurisdiction over Iron County all the same by
operation of the now defunct rule 4(b)(ii). Again, we conclude
that Cheek has failed to carry her burden of persuasion.
¶21 When the district court entered its order dismissing Iron
County from the action, rule 4(b) of the Utah Rules of Civil
Procedure provided that, “[i]n any action brought against two or
more defendants on which service has been timely obtained
upon one of them, (A) the plaintiff may proceed against those
served, and (B) the others may be served or appear[8] at any time
8. Cheek also contends that the district court had personal
jurisdiction over Iron County notwithstanding her defective
service because Iron County made a general appearance in the
case. See Barlow v. Cappo, 821 P.2d 465, 466–67 (Utah Ct. App.
1991) (explaining that a defendant consents to the jurisdiction of
the trial court by making a general appearance in the case). But
she did not preserve this issue by raising it below. “Generally, a
party cannot raise an issue for the first time on appeal.” LaChance
v. Richman, 2011 UT App 40, ¶ 15, 248 P.3d 1020. Rather, an issue
must be presented “to the trial court in such a way that the trial
court has an opportunity to rule on that issue.” Id. (citation and
internal quotation marks omitted). Because Cheek did not give
the district court an opportunity to address this argument, and
because she failed to argue an exception to the preservation rule,
we decline to reach it. See State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443.
20160787-CA 12 2018 UT App 116Cheek v. Iron County
prior to trial.” Utah R. Civ. P. 4(b)(ii) (2016). 9 Cheek contends
that the court’s decision to dismiss Iron County from the action
was premature under this rule because the sufficiency of her
service upon the other Defendants is undisputed, and the court
rendered its decision prior to the trial stage. In other words,
given that the other Defendants had been properly served,
Cheek argues that Iron County was not permitted to move for
dismissal on defective service grounds until the first day of
trial. 10
¶22 Cheek concedes, however, that her argument conflicts
with our Supreme Court’s decision in Hunter v. Sunrise Title Co.,
2004 UT 1, 84 P.3d 1163. In that case, although the plaintiff
named three defendants in his complaint, he did not properly
serve the third defendant until the first two had already been
dismissed from the action “with prejudice and on the merits.” Id.
¶ 10. For that reason, the district court determined that the
plaintiff could not seek shelter under rule 4(b)(ii) and was
therefore subject to the ordinary 120-day timeframe for effecting
service following the filing of the complaint. Id. ¶ 5. Accordingly,
because the plaintiff had served the third defendant well outside
of that timeframe, the court granted the defendant’s motion to
dismiss. Id. Affirming, the Supreme Court stated the rule
applicable here in unequivocal terms:
9. Our Supreme Court repealed rule 4(b)(ii) by amendment,
effective November 1, 2016. See Utah R. Civ. P. 4 amendment
notes (2017).
10. Ten months elapsed from the date Iron County moved to
dismiss for defective service to the date that the motion was
granted. Why Cheek did not simply re-serve Iron County in the
interim and correct the mistake she now concedes she made, we
cannot say.
20160787-CA 13 2018 UT App 116Cheek v. Iron County
[T]he co-defendant provision of rule
4(b) . . . allowing service “at any time prior to trial”
does not apply where . . . all other co-defendants
have been formally dismissed. If all served
co-defendants are formally dismissed from an
action, rule 4(b) mandates service upon at least one
remaining unserved defendant within 120 days of
the date of filing of the complaint, absent the
district court’s timely grant of an extension. A
plaintiff’s failure to satisfy the 120-day requirement
or obtain an extension[11] results in dismissal of the
complaint as untimely . . . .
Id. ¶ 14.
¶23 Cheek asks us to carve out an exception to the rule stated
in Hunter. She maintains that her case is distinguishable because,
unlike the dismissed defendants in Hunter, here “neither of the
two served Defendants should have been dismissed.” But while
Cheek has successfully convinced us that the district court
improperly dismissed one of the Defendants, she does not
explain why this distinction compels us to deviate from binding
precedent.
11. Cheek also contends that reversal is warranted even if she
cannot obtain shelter under rule 4(b)(ii) because she
“requested . . . an extension to remedy her failure to properly
serve Iron County” before the district court entered its dismissal
order. Iron County argues that this is a mischaracterization of
the record. Regardless, it is undisputed that the court did not
grant any such extension request, and Cheek has not argued that
the court’s inaction in this regard was an abuse of its discretion.
See Warner v. Warner, 2014 UT App 16, ¶ 15, 319 P.3d 711(explaining that a court’s decision whether to grant an extension
of the time limits set out in the Utah Rules of Civil Procedure is
reviewed for abuse of discretion).
20160787-CA 14 2018 UT App 116Cheek v. Iron County
¶24 “An appellate court is not a depository into which parties
may dump the burden of their argument and research.”
Andersen v. Andersen, 2015 UT App 260, ¶ 6, 361 P.3d 698 (per
curiam). Accordingly, rule 24 of the Utah Rules of Appellate
Procedure provides that an appellant’s brief must contain an
argument “explain[ing], with reasoned analysis supported by
citations to legal authority . . . , why the party should prevail on
appeal.” Utah R. App. P. 24(a)(8). “An issue is inadequately
briefed when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing
court.” Mercado v. Hill, 2012 UT App 44, ¶ 11, 273 P.3d 385(citation and internal quotation marks omitted).
¶25 Cheek fails to carry her burden on appeal because she
makes no attempt to present “reasoned analysis supported by
citations to legal authority,” see Utah R. App. P. 24(a)(8), to
convince us that the rule in Hunter should not apply in her case.
In fact, the entirety of her argument is limited to a single,
three-sentence paragraph, which takes up not even one half of
one page of her opening brief. Of course, the strength of an
appellant’s argument does not necessarily increase in proportion
with its length. Yet here, given that Cheek’s scant argument
contains neither reasons nor legal citations in support of her
position, there can be no question that Cheek’s argument is “so
lacking as to shift the burden of research and argument to the
reviewing court.” See Hill, 2012 UT App 44, ¶ 11 (citation and
internal quotation marks omitted).
¶26 Further, we observe that the persuasiveness of Cheek’s
basic position is far from obvious. In fact, there is nothing in
Hunter suggesting that the scope of its holding is limited to cases
in which all served defendants have been properly dismissed. On
the contrary, the Court expressly held that rule 4(b)(ii) did not
apply whenever the served defendants had been “formally
dismissed.” Hunter, 2004 UT 1, ¶ 14. Moreover, the reasoning
adduced by the Court in support of its holding seems to suggest
that the propriety of the district court’s decision dismissing one
20160787-CA 15 2018 UT App 116Cheek v. Iron County
defendant is not a salient consideration when evaluating the
effect of the plaintiff’s failure to serve another defendant. In
explaining its decision, the court began by emphasizing that
“court rules dictate that plaintiffs pursue their claims in an
expeditious manner.” Id. ¶ 9. It then proceeded to quote with
approval the following language from the Washington Supreme
Court: “‘A plaintiff who fails to serve each defendant risks losing
the right to proceed against unserved defendants if the served
defendant is dismissed.’” Id. ¶ 9 (brackets omitted) (quoting Sidis
v. Brodie/Dohrmann, Inc., 815 P.2d 781, 783 (Wash. 1991)). No
mention was made of the dismissal having to be proper in an
absolute sense. And because predicating the applicability of rule
4(b)(ii) upon the result of a later appeal would most certainly not
further the goal of encouraging the expeditious resolution of
claims, it is logical to conclude that Hunter applies regardless of
whether the district court’s decision dismissing a served
defendant is eventually affirmed or reversed on appeal.
¶27 Accordingly, Cheek has failed to persuade us that the
Hunter exception to rule 4(b)(ii) did not apply if a served
defendant was dismissed improperly. We therefore affirm the
court’s decision that Cheek’s defective service did not effectively
bring Iron County under its jurisdiction and that Cheek could
not avail herself of rule 4(b)(ii)’s protection.
CONCLUSION
¶28 For the foregoing reasons, we reverse the district court’s
decisions dismissing Cedar City from the action but affirm its
decision to dismiss Iron County and Garrett. We remand the
case for further proceedings consistent with this opinion.
20160787-CA 16 2018 UT App 116